{{law}}{{TOCnestright}}The '''November 2008 vote in favor''' of [[California Proposition 8 (2008)|Proposition 8]] has led to numerous lawsuits that examine a variety of significant legal issues surrounding the vote. The next major date in Proposition 8's legal history was January 11, 2010, when a federal judge opens hearings on whether or not the amendment violates the U.S. Constitution.<Ref>[http://www.csmonitor.com/2009/0820/p02s05-ussc.html ''Christian Science Monitor'', "Date set for challenge of California gay-marriage ban", August 19, 2009]</ref>

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Six '''lawsuits seeking to invalidate Proposition 8''' have been filed since the vote on [[California Proposition 8 (2008)|Prop 8]] was held on November 4, while Prop 8's supporters filed an unsuccessful lawsuit in federal court seeking an injunction against California's campaign finance disclosure laws.<ref>[http://www.nytimes.com/2009/01/19/us/19prop8.html?ref=us ''New York Times'', "Marriage Ban Donors Feel Exposed by List", January 18, 2009]</ref>

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The [[California Supreme Court]] heard oral arguments on [[BC2009#March|March 5, 2009]] on the lawsuits seeking to invalidate Proposition 8. The court has 90 days (until [[BC2009#June|June 3]]) to issue its verdict in the matter.<ref>[http://www.ktvu.com/news/19473723/detail.html ''KTVU'', "Both Sides Await Prop. 8 Decision On Anniversary Of Ruling", May 15, 2009]</ref> A court-watching reporter for the [[Los Angeles Times]] wrote after the March 5 hearing that the court "strongly indicated Thursday it would rule that Proposition 8 validly abolished the right for gays to marry but would allow same-sex couples who wed before the November election to remain legally married."<ref>[http://www.latimes.com/news/printedition/front/la-me-prop8-supreme-court6-2009mar06,0,2781358.story ''Los Angeles Times'', "California Supreme Court looks unlikely to kill Proposition 8", March 6, 2009]</ref>,<ref>[http://www.mercurynews.com/ci_11024156?source=most_viewed ''Mercury News'', "California Supreme Court to decide fate of Prop. 8 same-sex marriage ban", November 19, 2008]</ref>,<ref>[http://www.nytimes.com/2008/11/20/us/20marriage.html?ref=us ''New York Times'', "Top Court in California Will Review Proposition 8", November 19, 2008]</ref>,<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/19/BAJC147QAJ.DTL&type=politics&tsp=1 ''San Francisco Chronicle'', "State Supreme Court rejoins Prop. 8 battle", November 20, 2008]</ref>

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Significant legal issues raised about Proposition 8 have included:

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Over 60 ''amicus curiae'' ("Friend of the Court") briefs have been filed with the California Supreme Court, arguing for and against the constitutionality of Proposition 8, including a brief by internet goliath [[wikipedia:Google|Google]] arguing that the measure denies basic rights to employees.<ref>[http://www.catholicnewsagency.com/new.php?n=14822 ''Catholic News Agency'', "Google sides with anti-Prop. 8 lawsuits in amicus briefs", January 19, 2009]</ref>,<ref>[http://www.msnbc.msn.com/id/28680948/ ''MSNBC'', "Legal Groups File Brief in Support of Same-Sex Marriage", January 2009]</ref>

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* Whether Prop 8 amounted to an impermissible [[constitutional revision]], rather than an [[constitutional amendment|amendment]].

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* As a question for both state and federal law, whether a popular vote of the people can impact on the legal rights of a minority.

The [[California Supreme Court]] announced on [[BC2009#May|Tuesday, May 26]] that by a 6-1 vote, it was upholding the constitutionality of [[California Proposition 8 (2008)|Proposition 8]], while also upholding the approximately 18,000 same-sex marriages in the state.<ref>[http://latimesblogs.latimes.com/lanow/2009/05/proposition-8-decision-will-occur-tuesday-california-supreme-court-says.html ''Los Angeles Times'', "California Supreme Court to rule on Proposition 8 Tuesday", May 22, 2009]</ref><ref>[http://www.latimes.com/news/local/la-me-gay-marriage27-2009may27,0,7752874.story ''Los Angeles Times'', "California high court upholds Prop 8", May 25, 2009]</ref>

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Although several different legal lines of attack against Proposition 8 have been made in the various lawsuits, the central issues are:

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The three lawsuits the court settled on May 26 are ''[[Strauss v. Horton]]'', ''[[Tyler v. State of California]]'' and ''[[City and County of San Francisco v. Horton]]''.<ref>[http://www.courtinfo.ca.gov/courts/supreme/ ''Website of the California Supreme Court'']</ref>

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* Whether Proposition 8 is a state constitutional amendment, which can be passed by initiative, or a constitutional revision, which can't.

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Supporters of same-sex marriage, anticipating that California's highest court would uphold the state's ban, filed a lawsuit in federal court on [[BC2009#May|May 22]], arguing that federal courts should overturn Prop 8 because it violates a federal constitutional right for same-sex couples to marry. The lawsuit was filed by Ted Olson and David Boies. Their lawsuit asks the [[judgepedia:United States District Court for the Northern District of California|United States District Court for the Northern District of California]] to throw out Prop 8.<ref>[http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Ted-Olson-goes-to--46137917.html ''Washington Examiner'', "Ted Olson goes to court on behalf of gay marriage", May 26, 2009]</ref>

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* Whether the right of a minority group should be decided by the voters (as in Proposition 8) or the courts or legislature.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/18/BAAV147103.DTL&type=politics&tsp=1 ''San Francisco Chronicle'', "Prop. 8 hinges on who decides: judges or voters", November 19, 2008]</ref>

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==State court lawsuits==

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Although several different legal lines of attack against Proposition 8 were made in various lawsuits filed in California's state court system, the central issues were:

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* Whether Proposition 8 is a state constitutional amendment, which can be passed by initiative, or a [[constitutional revision]], which can't.

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* Whether the right of a minority group should be decided by the voters (as in Proposition 8) or the courts or legislature.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/18/BAAV147103.DTL&type=politics&tsp=1 ''San Francisco Chronicle'', "Proposition 8 hinges on who decides: judges or voters", November 19, 2008]</ref>

Proposition 8 was also at the center off three legal cases prior to the election:

Proposition 8 was also at the center off three legal cases prior to the election:

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* A lawsuit by opponents seeking to strike an argument made by the pro-Prop 8 campaign in the official state voter's guide.

* A lawsuit by opponents seeking to strike an argument made by the pro-Prop 8 campaign in the official state voter's guide.

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===The lawsuits===

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===The plaintiffs===

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* The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a lawsuit, ''[[Strauss v. Horton]]'', the basis of which is that Proposition 8 is invalid because it represents a fundamental alteration of the [[California Constitution]]; the suit says that fundamental alterations cannot be accomplished through a popular vote on an initiative.<ref>[http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-amendedpetitionforextraordinaryrelief.pdf Text of ''Strauss v. Horton'']</ref> This legal claim hinges on Article 18 of the constitution which says that it, the constitution, can be changed by amendment or by revision. "Amendments", according to Article 18, may be enacted by initiative with a majority vote, whereas "revisions" can only be enacted through a procedure that starts with the [[California State Legislature]] agreeing by a revision by a two-thirds vote in the legislature, followed by a statewide vote of the electorate. The lawsuit says that Prop 8, properly understood, is a "revision"; if the court agrees, then Prop 8 could be nullifed. Forty-three Democratic members of the state legislature filed a "friend of the court" brief supporting the ACLU lawsuit.<ref>[http://www.aclu.org/pdfs/lgbt/ca_prop8_writpetition.pdf Text of lawsuit filed by ACLU, Lambda Legal, others]</ref>,<ref>[http://www.mydesert.com/article/20081106/NEWS03/81106038 ''Desert Sun'', "Lawsuits could mount in Prop 8 battle", November 6, 2008]</ref>,<ref>[http://www.latimes.com/news/printedition/opinion/la-oe-liu10-2008nov10,0,3337879.story ''Los Angeles Times'', "The law and Prop. 8", November 10, 2008]</ref>,<ref>[http://www.latimes.com/news/local/politics/cal/la-me-marriage11-2008nov11,0,5162523.story ''Los Angeles Times'', "Democratic legislators ask state Supreme Court to void Prop. 8", November 11, 2008]</ref>

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* The [[American Civil Liberties Union]], [[Lambda Legal]] and the National Center for Lesbian Rights filed a lawsuit, ''[[Strauss v. Horton]]'', the basis of which is that Proposition 8 is invalid because it represents a fundamental alteration of the [[California Constitution]]; the suit says that fundamental alterations cannot be accomplished through a popular vote on an initiative.<ref>[http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/s168047-amendedpetitionforextraordinaryrelief.pdf Text of ''Strauss v. Horton'']</ref> This legal claim hinges on Article 18 of the constitution which says that it, the constitution, can be changed by amendment or by revision. "Amendments", according to Article 18, may be enacted by initiative with a majority vote, whereas "revisions" can only be enacted through a procedure that starts with the [[California State Legislature]] agreeing by a revision by a two-thirds vote in the legislature, followed by a statewide vote of the electorate. The lawsuit says that Prop 8, properly understood, is a "revision"; if the court agrees, then Prop 8 could be nullifed. Forty-three Democratic members of the state legislature filed a "friend of the court" brief supporting the ACLU lawsuit.<ref>[http://www.aclu.org/pdfs/lgbt/ca_prop8_writpetition.pdf Text of lawsuit filed by ACLU, Lambda Legal, others]</ref><ref>[http://www.mydesert.com/article/20081106/NEWS03/81106038 ''Desert Sun'', "Lawsuits could mount in Prop 8 battle", November 6, 2008]</ref><ref>[http://www.latimes.com/news/printedition/opinion/la-oe-liu10-2008nov10,0,3337879.story ''Los Angeles Times'', "The law and Proposition 8", November 10, 2008]</ref><ref>[http://www.latimes.com/news/local/politics/cal/la-me-marriage11-2008nov11,0,5162523.story ''Los Angeles Times'', "Democratic legislators ask state Supreme Court to void Proposition 8", November 11, 2008]</ref>

* The governments of San Francisco, Los Angeles and Santa Clara County filed a lawsuit, ''[[San Francisco v. Horton]]'', to invalidate the amendment. They argue, "Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause."<ref>[http://www.pasadenastarnews.com/news/ci_10912015 ''Pasadena Star News'', "Prop. 8 spawns slew of lawsuits", November 5, 2008]</ref>

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* The governments of San Francisco, Los Angeles and Santa Clara County filed a lawsuit, ''[[San Francisco v. Horton]]'', to invalidate the amendment. They argue, "Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause."<ref>[http://www.pasadenastarnews.com/news/ci_10912015 ''Pasadena Star News'', "Proposition 8 spawns slew of lawsuits", November 5, 2008]</ref>

Jerry Brown, as the [[California Attorney General]], is legally required to defend state laws unless he cannot find reasonable legal grounds to do so. After Prop 8 passed, he initially said he would defend the measure in court. On December 19, he reversed himself, saying that in his view the amendment is "inconsistent with the guarantees of individual liberty" in the [[California Constitution]] and asking the state's highest court to overturn it.<ref name="brown">[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/12/19/MN6514RNVU.DTL&type=politics ''San Francisco Chronicle'', "Brown asks state high court to overturn Prop. 8", December 20, 2008]</ref>,<ref>[http://writ.news.findlaw.com/amar/20090102.html ''Findlaw's Writ'', "The California Attorney General’s Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers", January 2, 2009]</ref>

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[[Jerry Brown]], as (then) [[California Attorney General]], is legally required to defend state laws unless he cannot find reasonable legal grounds to do so. After Prop 8 passed, he initially said he would defend the measure in court. On December 19, he reversed himself, saying that in his view the amendment is "inconsistent with the guarantees of individual liberty" in the [[California Constitution]] and asking the state's highest court to overturn it.<ref name="brown">[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/12/19/MN6514RNVU.DTL&type=politics ''San Francisco Chronicle'', "Brown asks state high court to overturn Proposition 8", December 20, 2008]</ref><ref>[http://writ.news.findlaw.com/amar/20090102.html ''Findlaw's Writ'', "The California Attorney General’s Brief in the California Supreme Court Case Challenging Proposition 8: The Questions It Raised, and Why It Surprised Many Observers", January 2, 2009]</ref>

In his 111-page brief urging that the court overturn Prop 8, Brown also rejected some of the principal legal theories put forth by gay marriage advocates in their bid to overturn the initiative. Specifically, the largest amount of space in his legal filing argues that Prop 8 opponents are wrong when they say that Prop 8 is a revision rather than an amendment.<ref name="golden">[http://latimesblogs.latimes.com/lanow/2008/12/california-atto.html ''Los Angeles Times'', "Jerry Brown's Proposition 8 stance faults legal arguments of gay marriage backers", December 23, 2008]</ref>

In his 111-page brief urging that the court overturn Prop 8, Brown also rejected some of the principal legal theories put forth by gay marriage advocates in their bid to overturn the initiative. Specifically, the largest amount of space in his legal filing argues that Prop 8 opponents are wrong when they say that Prop 8 is a revision rather than an amendment.<ref name="golden">[http://latimesblogs.latimes.com/lanow/2008/12/california-atto.html ''Los Angeles Times'', "Jerry Brown's Proposition 8 stance faults legal arguments of gay marriage backers", December 23, 2008]</ref>

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Some Proposition 8 supporters, such as John C. Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute, say that although Brown has urged the court to overturn Prop 8, Brown's specific arguments in the area of whether Prop 8 is an amendment or a revision do more to undermine 8 than does Brown's position that the amendment fundamentally conflicts with the state's constitution.<ref name="golden"/> In a mid-January filing with the court, backers of Prop 8 said that Brown's brief asking the court to overturn the measure “invented an entirely new theory", going on to say, "“We will not mince words. The attorney general is inviting this court to declare a constitutional revolution."<ref>[http://www.gaylesbiantimes.com/?id=13852 ''Gay and Lesbian Times'', "Prop. 8 backers blast Calif. Attorney General", January 15, 2009]</ref>

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Some Proposition 8 supporters, such as John C. Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute, say that although Brown has urged the court to overturn Prop 8, Brown's specific arguments in the area of whether Prop 8 is an amendment or a revision do more to undermine 8 than does Brown's position that the amendment fundamentally conflicts with the state's constitution.<ref name="golden"/> In a mid-January filing with the court, backers of Prop 8 said that Brown's brief asking the court to overturn the measure “invented an entirely new theory", going on to say, "“We will not mince words. The attorney general is inviting this court to declare a constitutional revolution."<ref>[http://www.gaylesbiantimes.com/?id=13852 ''Gay and Lesbian Times'', "Proposition 8 backers blast Calif. Attorney General", January 15, 2009]</ref>

Peter Hecht, a reporter at the [[Sacramento Bee]], observed that Brown's reversal could be politically helpful for Brown if he faces San Francisco mayor and same-sex marriage proponent Gavin Newsom in a June 2010 Democratic primary for governor.<ref>[http://www.sacbee.com/politics/story/1516236.html ''Sacramento Bee'', "Jerry Brown wins praise, criticism for stance on Proposition 8", January 20, 2009]</ref>

Peter Hecht, a reporter at the [[Sacramento Bee]], observed that Brown's reversal could be politically helpful for Brown if he faces San Francisco mayor and same-sex marriage proponent Gavin Newsom in a June 2010 Democratic primary for governor.<ref>[http://www.sacbee.com/politics/story/1516236.html ''Sacramento Bee'', "Jerry Brown wins praise, criticism for stance on Proposition 8", January 20, 2009]</ref>

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* [[Martinez v. Kulongoski]], 2008. Oregon.

* [[Martinez v. Kulongoski]], 2008. Oregon.

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==Supporters ask for campaign finance injunction==

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==Federal lawsuit==

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:: ''See also: [[Perry v. Schwarzenegger]]''

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A federal lawsuit was filed on May 22 with the [[judgepedia:United States District Court for the Northern District of California|United States District Court for the Northern District of California]] asking that Proposition 8 be declared unconstitutional according to the U.S. Constitution. The non-jury trial is set to begin on January 11, 2010. Judge [[judgepedia:Vaughn Walker|Vaughn Walker]] is presiding over the case.<ref name=fox>[http://www.foxreno.com/news/21899008/detail.html ''Fox Reno'', "Proposition 8 Opponents To Tell Judge Lawsuit Is Irrational", December 8, 2009]</ref>

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The lawsuit is sponsored by the [[American Foundation for Equal Rights]], led by [[Chad Griffin]], and financed in part by [[Rob Reiner]].<ref name=ark>[http://www.arktimes.com/Articles/ArticleViewer.aspx?ArticleID=23a4ff60-f2b7-4392-bb20-e660e7c646de ''Arkansas Times'', "From Wal-Mart to the White House", December 10, 2009]</ref>

The plaintiffs in the case say that they plan to establish that Proposition 8 is "irrational, indefensible and unconstitutional."<ref name=fox/>

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===Initial opposition===

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When the federal lawsuit was announced, several major groups opposed to Prop 8 denounced it, including:

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* The [[National Center for Lesbian Rights]]

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* [[Lambda Legal]]

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* The [[American Civil Liberties Union]]

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In July, these same groups petitioned the court to be allowed to intervene on behalf of the plaintiffs.<ref name=ontop>[http://www.ontopmag.com/article.aspx?id=4349&MediaType=1&Category=26 ''On Top Magazine'', "Gay Groups Not Welcome In Federal Marriage Suit", August 8, 2009]</ref>

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Griffin of AFER asked that these groups not be allowed to intervene in the case. He wrote a letter to the groups in early July 2009 saying, "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene.”<ref name=ontop/>

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Attorneys Olson and Boies also asked the court not to allow these groups to intervene, saying that their intervention "poses a substantial risk of interference and delay...Having declined to bring their own federal challenge to Proposition 8, Our Family Coalition and their counsel [the gay rights groups] should not be allowed to usurp plaintiffs' lawsuit now that it is under way and moving forward on an expedited basis."<ref name=ontop/>

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===Disclosure of campaign materials===

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A key early issue in the case was a request by plaintiffs that the court compel the "Yes on 8" campaign to release its internal campaign strategy documents. The reason for this request, according to one account, is that the plaintiffs believed that if they found evidence in these documents that the "Yes on 8" strategists were attempting "to sow fear and discrimination against gays and lesbians", this information would be relevant in helping a judge decide what the motivations were of those who voted in favor of Proposition 8.<ref name=full>[http://latimesblogs.latimes.com/lanow/2009/12/appeals-court-to-vote-on-new-hearing-in-proposition-8-challenge.html ''Los Angeles Times'', "Appeals court to vote on new hearing in Proposition 8 challenge", December 16, 2009]</ref>

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[[judgepedia:Vaughn Walker|Chief U.S. District Judge Vaughn Walker]] ordered that the documents be disclosed. In early December 2009, a three-judge panel of the [[judgepedia:Ninth Circuit|Ninth U.S. Circuit of Appeals]] suspended Walker's order.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/03/BA4T1AUMGO.DTL&tsp=1 ''San Francisco Chronicle'', "Prop 8 backers likely to win disclosure fight", December 4, 2009]</ref> In its decision, the 3-judge panel wrote, "The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the 1st Amendment."<ref>[http://www.latimes.com/news/local/la-me-prop812-2009dec12,0,5297904.story ''Los Angeles Times'', "Foes of California's gay-marriage ban lose federal appeal", December 12, 2009]</ref><ref>[http://www.ballot-access.org/2009/12/12/9th-circuit-says-compelled-disclosure-of-internal-campaign-communications-violates-first-amendment/ ''Ballot Access News'', "9th Circuit Says Compelled Disclosure of Internal Campaign Communications Violates First Amendment", December 12, 2009]</ref>

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On December 16, one of the 27 active judges on the Ninth Circuit called for a vote to rehear the issue with a full 11-member panel of judges. Attorneys on both sides of the dispute were requested to file briefs on the matter by December 24, 2009<ref name=full/> On December 30, the court announced that it was re-affirming its original ruling not to order disclosure.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/31/BAGA1BBNTC.DTL ''San Francisco Chronicle'', "Prop 8 campaign document ruling re-affirmed", December 31, 2009]</ref>

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===Televised coverage===

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On Wednesday, January 6, federal judge [[judgepedia:Vaughn Walker|Vaughn Walker]] ruled that cameras will be allowed in his courtroom when he begins hearings on the federal lawsuit on [[BC2010#January|January 11]].

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Video footage from the trial will be uploaded to YouTube daily.<ref>[http://www.cnn.com/2010/CRIME/01/07/california.prop.8.cameras/ ''CNN'', "Same-sex marriage trial to be shown on YouTube", January 7, 2010]</ref>

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Supporters of Proposition 8 argued that televising the trial is unwise and illegal, leaving open the possibility that they will appeal Judge Walker's decision to televise the proceedings.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/29/BA9A1BB627.DTL&tsp=1 ''San Francisco Chronicle'', "Prop 8 backers say TV coverage of trial unwise", December 30, 2009]</ref>

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The [[Courage Campaign]] has been a leading advocate of televising the proceedings.<ref>[http://blockbusterdemocracy.newamerica.net/blogposts/2010/should_prop_8_federal_suit_be_televised-25974 ''Blockbuster Democracy'', "Should Prop 8 Federal Suit Be Televised?", January 5, 2010]</ref>

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==Donor disclosure lawsuit==

:: ''See [[Boycotts related to California Proposition 8]].''

:: ''See [[Boycotts related to California Proposition 8]].''

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The mandatory disclosure of contributors to Proposition 8 on the website of the [[California Secretary of State]] has led to acts of vandalism, boycotts and death threats, according to the lawsuit.

The mandatory disclosure of contributors to Proposition 8 on the website of the [[California Secretary of State]] has led to acts of vandalism, boycotts and death threats, according to the lawsuit.

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"This harassment is made possible because of California's unconstitutional campaign finance disclosure rules as applied to ballot measure committees where even donors of as little as $100 must have their names, home addresses and employers listed on public documents," according Ron Prentice, who is the chairman of the Yes on 8 committee.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/08/BAF915651F.DTL&type=politics ''San Francisco Chronicle'', "Prop. 8 supporters want donors anonymous", January 9, 2009]</ref>

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"This harassment is made possible because of California's unconstitutional campaign finance disclosure rules as applied to ballot measure committees where even donors of as little as $100 must have their names, home addresses and employers listed on public documents," according Ron Prentice, who is the chairman of the Yes on 8 committee.<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/08/BAF915651F.DTL&type=politics ''San Francisco Chronicle'', "Proposition 8 supporters want donors anonymous", January 9, 2009]</ref>

The suit seeks to:

The suit seeks to:

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* And, "We filed this lawsuit because the sponsors of the initiative haven’t followed the very constitution they’re trying to change. For good reason, there’s a strict process for making revisions to our constitution and it’s more involved than simply collecting petition signatures"<ref>Bay City News, [http://www.sanfranciscosentinel.com/?p=14065 ''Marriage Equality Group Asks California Supreme Court to remove November Same-Sex Marriage Ban Initiative'']</ref>

* And, "We filed this lawsuit because the sponsors of the initiative haven’t followed the very constitution they’re trying to change. For good reason, there’s a strict process for making revisions to our constitution and it’s more involved than simply collecting petition signatures"<ref>Bay City News, [http://www.sanfranciscosentinel.com/?p=14065 ''Marriage Equality Group Asks California Supreme Court to remove November Same-Sex Marriage Ban Initiative'']</ref>

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A pro-initiative attorney, Glen Lavy who works with the [[Alliance Defense Fund]], who was quoted in the press about the lawsuit said, "Equality California and its allies are desperate to evade democracy."<ref>Mercury News, [http://www.mercurynews.com/ci_9651279?source=most_viewed ''Civil rights groups seek to block California gay marriage ballot initiative''], June 20, 2008</ref> Five proponents of Prop. 8 filed a brief with the court asking it to reject the attempt to remove the initiative from the ballot, saying that removal would be an "inexcusable incursion into the right of the people to amend their constitution."<ref>KTVU-TV, [http://www.ktvu.com/news/16760992/detail.html ''Proponents Urge Court To Leave Marriage Initiative On Nov. Ballot''], July 1, 2008</ref>

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A pro-initiative attorney, Glen Lavy who works with the [[Alliance Defense Fund]], who was quoted in the press about the lawsuit said, "Equality California and its allies are desperate to evade democracy."<ref>Mercury News, [http://www.mercurynews.com/ci_9651279?source=most_viewed ''Civil rights groups seek to block California gay marriage ballot initiative''], June 20, 2008</ref> Five proponents of Proposition 8 filed a brief with the court asking it to reject the attempt to remove the initiative from the ballot, saying that removal would be an "inexcusable incursion into the right of the people to amend their constitution."<ref>KTVU-TV, [http://www.ktvu.com/news/16760992/detail.html ''Proponents Urge Court To Leave Marriage Initiative On Nov. Ballot''], July 1, 2008</ref>

The California Supreme Court had three options with respect to the lawsuit:

The California Supreme Court had three options with respect to the lawsuit:

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===Lawsuit fails===

===Lawsuit fails===

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On July 16, the California Supreme Court announced that is was declining to consider the request for a hearing. The decision was unanimous. The court did not announce a reason for its decision.<ref>[http://ap.google.com/article/ALeqM5hZmLBrL36NObNyMR0ghXN7vB5hYwD91V898O0 ''Associated Press'', "Calif. court rejects gay-marriage-initiative case", July 16, 2008]</ref>,<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/16/BAL911Q6RA.DTL&type=politics ''San Francisco Chronicle'', "Challenge tossed, gay marriage ban on ballot", July 17, 2008]</ref>

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On July 16, the California Supreme Court announced that is was declining to consider the request for a hearing. The decision was unanimous. The court did not announce a reason for its decision.<ref>[http://ap.google.com/article/ALeqM5hZmLBrL36NObNyMR0ghXN7vB5hYwD91V898O0 ''Associated Press'', "Calif. court rejects gay-marriage-initiative case", July 16, 2008]</ref><ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/16/BAL911Q6RA.DTL&type=politics ''San Francisco Chronicle'', "Challenge tossed, gay marriage ban on ballot", July 17, 2008]</ref>

===Ballot title lawsuit===

===Ballot title lawsuit===

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On July 29, supporters of Proposition 8 filed a lawsuit, ''[[Jansen v. Bowen]]'', against [[California Attorney General]] [[Jerry Brown]]. The lawsuit sought to have the Sacramento County Superior Court order a different [[ballot title]] for Prop. 8 than the title chosen by Brown. Prop. 8 supporters asked for an expedited hearing on their lawsuit, since the state ballot booklets were to go to the printers on August 11. Protect Marriage, in its brief, cited research that the attorney general had not used a negative active verb like "eliminates" in the title of a ballot measure in the fifty years in which ballot measures have been used.<ref>[http://www.catholicnewsagency.com/new.php?n=13415''CNA'', "Lawsuit filed to challenge California ballot’s ‘inflammatory’ rewording of marriage amendment", August 1, 2008]</ref> On Friday, August 8, Sacramento County Superior Court Judge Timothy Frawley ruled '''against''' Prop. 8 supporters in a 8-page ruling that said the ballot title is an accurate representation of what Prop. 8 will do.<ref>[http://www.pe.com/ap_news/California/CA_Gay_Marriage_353402C.shtml ''Judge upholds summary of gay marriage ban'']</ref>,<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/30/BASO121RRI.DTL ''San Francisco Chronicle'', "Prop. 8 backers sue to change ballot wording", July 30, 2008]</ref>,<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/08/BAPM1279A1.DTL ''Judge puts off ruling on marriage measure'', August 8, 2008]</ref>

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On July 29, supporters of Proposition 8 filed a lawsuit, ''[[Jansen v. Bowen]]'', against [[California Attorney General]] [[Jerry Brown]]. The lawsuit sought to have the Sacramento County Superior Court order a different [[ballot title]] for Proposition 8 than the title chosen by Brown. Proposition 8 supporters asked for an expedited hearing on their lawsuit, since the state ballot booklets were to go to the printers on August 11. Protect Marriage, in its brief, cited research that the attorney general had not used a negative active verb like "eliminates" in the title of a ballot measure in the fifty years in which ballot measures have been used.<ref>[http://www.catholicnewsagency.com/new.php?n=13415''CNA'', "Lawsuit filed to challenge California ballot’s ‘inflammatory’ rewording of marriage amendment", August 1, 2008]</ref> On Friday, August 8, Sacramento County Superior Court Judge Timothy Frawley ruled '''against''' Proposition 8 supporters in a 8-page ruling that said the ballot title is an accurate representation of what Proposition 8 will do.<ref>[http://www.pe.com/ap_news/California/CA_Gay_Marriage_353402C.shtml ''Judge upholds summary of gay marriage ban'']</ref><ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/30/BASO121RRI.DTL ''San Francisco Chronicle'', "Proposition 8 backers sue to change ballot wording", July 30, 2008]</ref><ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/08/BAPM1279A1.DTL ''Judge puts off ruling on marriage measure'', August 8, 2008]</ref>

−

Prop. 8 supporters argued in the lawsuit that the new title chosen by Brown is "inherently argumentative and highly likely to create prejudice". The two specific requests in the lawsuit were that the ballot title be changed to:

+

Proposition 8 supporters argued in the lawsuit that the new title chosen by Brown is "inherently argumentative and highly likely to create prejudice." The two specific requests in the lawsuit were that the ballot title be changed to:

* Use the wording, "Limit on Marriage," because that is the language used on the initiative petitions that were circulated and signed by 1.2 million registered voters.

* Use the wording, "Limit on Marriage," because that is the language used on the initiative petitions that were circulated and signed by 1.2 million registered voters.

* Or, use the title, "Only marriage between a man and a woman is valid or recognized in California."

* Or, use the title, "Only marriage between a man and a woman is valid or recognized in California."

−

When the initiative wording for what eventually became Prop. 8 was filed many months ago, the title that Brown conferred on it at that time was consistent with what supporters of Prop. 8 are asking for. However, Brown changed the ballot title on July 3, 2008 to a short description and summary that Prop. 8 supporters, as well as a number of political pundits in California, believe is adverse to the pro-8 cause. The July 3 ballot title describes the measure as "Eliminates the Right of Same-Sex Couples to Marry". Voters in California, according to ballot pundit Thomas Elias, historically "rarely opt to take away rights" and the revised ballot title frames Prop. 8 as taking away a right.<ref>[http://www.presstelegram.com/opinions/ci_10133557 ''Thomas Elias: A ballot of words describing Prop. 8'', August 7, 2008]</ref>,<ref>[http://www.sos.ca.gov/elections/bp_11042008_pres_general/prop_8_titlesummary.pdf July 3 ballot title for Proposition 8]</ref>

+

When the initiative wording for what eventually became Proposition 8 was filed many months ago, the title that Brown conferred on it at that time was consistent with what supporters of Proposition 8 are asking for. However, Brown changed the ballot title on July 3, 2008 to a short description and summary that Proposition 8 supporters, as well as a number of political pundits in California, believe is adverse to the pro-8 cause. The July 3 ballot title describes the measure as "Eliminates the Right of Same-Sex Couples to Marry." Voters in California, according to ballot pundit Thomas Elias, historically "rarely opt to take away rights" and the revised ballot title frames Proposition 8 as taking away a right.<ref>[http://www.presstelegram.com/opinions/ci_10133557 ''Thomas Elias: A ballot of words describing Proposition 8'', August 7, 2008]</ref><ref>[http://www.sos.ca.gov/elections/bp_11042008_pres_general/prop_8_titlesummary.pdf July 3 ballot title for Proposition 8]</ref>

The new ballot summary also says that the measure will cost local governments "tens of millions of dollars" of "potential revenue loss", mainly in lost [[sales tax]]es.

The new ballot summary also says that the measure will cost local governments "tens of millions of dollars" of "potential revenue loss", mainly in lost [[sales tax]]es.

−

====Brown criticized, defended for change====

+

===Brown criticized, defended for change===

−

Brown was criticized for changing the ballot title. Tony Quinn, a political pundit and consultant generally for Republican causes, said, Brown "is delivering something . . . that is very important to the gay community, and that is a title and summary that is more likely to lead you to vote 'No,'"<ref>[http://www.latimes.com/news/local/politics/cal/la-me-gaymarriage29-2008jul29,0,7313757.story ''Los Angeles Times'', "Opponents of gay marriage say they'll sue over changed wording", July 29, 2008]</ref>,<ref>[http://www.sacbee.com/111/v-print/story/1119183.html ''Jerry Brown's cynical ploy on gay rights'', Dan Walters, Sacramento Bee, July 30, 2008]</ref>,<ref>[http://www.capitolweekly.net/article.php?_adctlid=v%7Cjq2q43wvsl855o%7Cxatnl836q4dt9p&xid=xat3g3kh9lp19g&done=search.php%3Fsearchparams%3Da%253A5%253A%257Bs%253A9%253A%2522issuedate%2522%253BN%253Bs%253A6%253A%2522author%2522%253BN%253Bs%253A5%253A%2522title%2522%253BN%253Bs%253A4%253A%2522body%2522%253BN%253Bs%253A12%253A%2522article_type%2522%253Bs%253A17%253A%25221192656582969_969%2522%253B%257D ''Experts expound: Is Jerry Brown playing politics?'']</ref>

+

Brown was criticized for changing the ballot title. Tony Quinn, a political pundit and consultant generally for Republican causes, said, Brown "is delivering something . . . that is very important to the gay community, and that is a title and summary that is more likely to lead you to vote 'No,'"<ref>[http://www.latimes.com/news/local/politics/cal/la-me-gaymarriage29-2008jul29,0,7313757.story ''Los Angeles Times'', "Opponents of gay marriage say they'll sue over changed wording", July 29, 2008]</ref><ref>[http://www.sacbee.com/111/v-print/story/1119183.html ''Jerry Brown's cynical ploy on gay rights'', Dan Walters, Sacramento Bee, July 30, 2008]</ref><ref>[http://www.capitolweekly.net/article.php?_adctlid=v%7Cjq2q43wvsl855o%7Cxatnl836q4dt9p&xid=xat3g3kh9lp19g&done=search.php%3Fsearchparams%3Da%253A5%253A%257Bs%253A9%253A%2522issuedate%2522%253BN%253Bs%253A6%253A%2522author%2522%253BN%253Bs%253A5%253A%2522title%2522%253BN%253Bs%253A4%253A%2522body%2522%253BN%253Bs%253A12%253A%2522article_type%2522%253Bs%253A17%253A%25221192656582969_969%2522%253B%257D ''Experts expound: Is Jerry Brown playing politics?'']</ref>

Brown defended the new ballot title, saying:

Brown defended the new ballot title, saying:

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* The petitions bearing the "Limit on Marriage" title were circulated before the [[California Supreme Court]] ruled in May that gay and lesbian couples have the same right to marry as opposite-sex couples in California.

* The petitions bearing the "Limit on Marriage" title were circulated before the [[California Supreme Court]] ruled in May that gay and lesbian couples have the same right to marry as opposite-sex couples in California.

* Brown says that therefore, "What has happened is the Supreme Court found that the right to marriage includes same-sex couples. This happened after the original title was approved. ... Now same-sex couples have a right that's recognized and supporters of the proposition want to eliminate that right."

* Brown says that therefore, "What has happened is the Supreme Court found that the right to marriage includes same-sex couples. This happened after the original title was approved. ... Now same-sex couples have a right that's recognized and supporters of the proposition want to eliminate that right."

−

* Brown said that supporters of Prop. 8 "can't say with a straight face that this isn't about eliminating the right to gay marriage, so what's their problem with this? This is a political lawsuit, not one about serious legal issues."

+

* Brown said that supporters of Proposition 8 "can't say with a straight face that this isn't about eliminating the right to gay marriage, so what's their problem with this? This is a political lawsuit, not one about serious legal issues."

−

In its lawsuit, '''Protect Marriage''', supporters of Prop. 8, say that research they conducted "found that never in the 50-year history of statewide ballot measures has the attorney general used an active verb like 'eliminates' in the title of a ballot measure."<ref>[http://www.mercurynews.com/ci_10039453?source=most_emailed ''Mercury News'', "Gay marriage opponents decry new Prop. 8 language as 'inflammatory'", July 30, 2008]</ref>

+

In its lawsuit, '''Protect Marriage''', supporters of Proposition 8, say that research they conducted "found that never in the 50-year history of statewide ballot measures has the attorney general used an active verb like 'eliminates' in the title of a ballot measure."<ref>[http://www.mercurynews.com/ci_10039453?source=most_emailed ''Mercury News'', "Gay marriage opponents decry new Proposition 8 language as 'inflammatory'", July 30, 2008]</ref>

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===Lawsuit over pro-8 argument in ballot booklet===

+

===Lawsuits over ballot booklets===

Opponents of Proposition 8 filed a lawsuit, ''[[Jenkins v. Bowen]]'', in late July asking that a pro-8 argument set to appear in the official ballot booklet that will be printed on August 11 and made available both on state websites and at polling places be removed.<ref>[http://www.opednews.com/articles/Hearings-Set-In-California-by-Kevin-Norte-080731-476.html ''Hearings Set In California's Proposition 8 Same Gender Marriage Battle'']</ref>

Opponents of Proposition 8 filed a lawsuit, ''[[Jenkins v. Bowen]]'', in late July asking that a pro-8 argument set to appear in the official ballot booklet that will be printed on August 11 and made available both on state websites and at polling places be removed.<ref>[http://www.opednews.com/articles/Hearings-Set-In-California-by-Kevin-Norte-080731-476.html ''Hearings Set In California's Proposition 8 Same Gender Marriage Battle'']</ref>

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* "In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is ''no difference'' between gay marriage and traditional marriage." (Emphases and capitalization from original text.)<ref>[http://www.sos.ca.gov/elections/bp_11042008_pres_general/prop_8_arg_in_favor.pdf ''Arguments in favor of Prop 8 proposed for official ballot book]</ref>

* "In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is ''no difference'' between gay marriage and traditional marriage." (Emphases and capitalization from original text.)<ref>[http://www.sos.ca.gov/elections/bp_11042008_pres_general/prop_8_arg_in_favor.pdf ''Arguments in favor of Prop 8 proposed for official ballot book]</ref>

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====Change ordered in wording====

+

* '''Change ordered in wording''':

−

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Prop. 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Prop. 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

+

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Proposition 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Proposition 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

−

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be".<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/08/BAE5127O2F.DTL ''Judge refuses to order change in Prop. 8 title'', August 9, 2008]</ref>

+

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be".<ref>[http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/08/08/BAE5127O2F.DTL ''Judge refuses to order change in Proposition 8 title'', August 9, 2008]</ref>

The November 2008 vote in favor of Proposition 8 has led to numerous lawsuits that examine a variety of significant legal issues surrounding the vote. The next major date in Proposition 8's legal history was January 11, 2010, when a federal judge opens hearings on whether or not the amendment violates the U.S. Constitution.[1]

Supporters of same-sex marriage, anticipating that California's highest court would uphold the state's ban, filed a lawsuit in federal court on May 22, arguing that federal courts should overturn Prop 8 because it violates a federal constitutional right for same-sex couples to marry. The lawsuit was filed by Ted Olson and David Boies. Their lawsuit asks the United States District Court for the Northern District of California to throw out Prop 8.[6]

State court lawsuits

Although several different legal lines of attack against Proposition 8 were made in various lawsuits filed in California's state court system, the central issues were:

Whether Proposition 8 is a state constitutional amendment, which can be passed by initiative, or a constitutional revision, which can't.

Whether the right of a minority group should be decided by the voters (as in Proposition 8) or the courts or legislature.[7]

Proposition 8 was also at the center off three legal cases prior to the election:

A lawsuit by supporters attempting to change the measure's ballot title.

A lawsuit by opponents seeking to strike an argument made by the pro-Prop 8 campaign in the official state voter's guide.

The plaintiffs

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a lawsuit, Strauss v. Horton, the basis of which is that Proposition 8 is invalid because it represents a fundamental alteration of the California Constitution; the suit says that fundamental alterations cannot be accomplished through a popular vote on an initiative.[8] This legal claim hinges on Article 18 of the constitution which says that it, the constitution, can be changed by amendment or by revision. "Amendments", according to Article 18, may be enacted by initiative with a majority vote, whereas "revisions" can only be enacted through a procedure that starts with the California State Legislature agreeing by a revision by a two-thirds vote in the legislature, followed by a statewide vote of the electorate. The lawsuit says that Prop 8, properly understood, is a "revision"; if the court agrees, then Prop 8 could be nullifed. Forty-three Democratic members of the state legislature filed a "friend of the court" brief supporting the ACLU lawsuit.[9][10][11][12]

The governments of San Francisco, Los Angeles and Santa Clara County filed a lawsuit, San Francisco v. Horton, to invalidate the amendment. They argue, "Proposition 8 is invalid under the California Constitution because the initiative power does not permit voters to divest a politically unpopular group of rights conferred by the equal protection clause."[14]

Mark Horton, the named defendant in several of the lawsuits, is California's Registrar of Vital Statistics; the suits are filed against him in his official capacity.

Jerry Brown's role

Jerry Brown, as (then) California Attorney General, is legally required to defend state laws unless he cannot find reasonable legal grounds to do so. After Prop 8 passed, he initially said he would defend the measure in court. On December 19, he reversed himself, saying that in his view the amendment is "inconsistent with the guarantees of individual liberty" in the California Constitution and asking the state's highest court to overturn it.[18][19]

In his 111-page brief urging that the court overturn Prop 8, Brown also rejected some of the principal legal theories put forth by gay marriage advocates in their bid to overturn the initiative. Specifically, the largest amount of space in his legal filing argues that Prop 8 opponents are wrong when they say that Prop 8 is a revision rather than an amendment.[20]

Some Proposition 8 supporters, such as John C. Eastman of the Center for Constitutional Jurisprudence at the Claremont Institute, say that although Brown has urged the court to overturn Prop 8, Brown's specific arguments in the area of whether Prop 8 is an amendment or a revision do more to undermine 8 than does Brown's position that the amendment fundamentally conflicts with the state's constitution.[20] In a mid-January filing with the court, backers of Prop 8 said that Brown's brief asking the court to overturn the measure “invented an entirely new theory", going on to say, "“We will not mince words. The attorney general is inviting this court to declare a constitutional revolution."[21]

Peter Hecht, a reporter at the Sacramento Bee, observed that Brown's reversal could be politically helpful for Brown if he faces San Francisco mayor and same-sex marriage proponent Gavin Newsom in a June 2010 Democratic primary for governor.[22]

Ken Starr

Calif. Justices Weigh Gay Marriage Ban

Ken Starr, the former Whitewater special prosecutor and now dean of Pepperdine University law school, is acting as the attorney for the "Yes on 8" campaign in defending Prop 8 in the California Supreme Court. He has argued that the court should preserve the people's lawmaking powers by upholding the initiative.[18]

Amendment versus revision

In the lawsuits filed to invalidate Proposition 8, one of the two main lines of reasoning about why the court should find Proposition 8 invalid is that it amounts to a revision of the California Constitution. Under Article 18 of California's laws governing the initiative process, citizen initiatives cannot be used to "revise" the constitution; they can only be used to "amend" the constitution.[23]

What is the difference between a "revision" and an "amendment"?

A revision is a fundamental change in the Constitution and a revision cannot be accomplished solely through a citizen initiative like Proposition 8. The legal issue, therefore, is whether Proposition 8 amounts to such a fundamental change to the constitution that it should be considered a revision, not an amendment.

Lawsuits similar to this have been filed against previous California initiatives. In two cases, the lawsuits succeeded in overturning an initiative. In several other cases--for example, a lawsuit to invalidate Proposition 13--similar lawsuits failed.

Relevant legal cases

Raven v. Deukmejian, 1990. In this case, the court struck down an initiative that would have barred the state courts from interpreting the state constitution in a more defendant-friendly way than the federal constitution is interpreted, on a wide range of constitutional provisions.[24]

Adams v. Gunter. This is a 1970 decision of the Florida Supreme Court that struck down an initiative to change Florida's state legislature to a unicameral rather than a bicameral body on the grounds that the initiative was a revision, not an amendment.

In these cases, the initiatives in question were found to be amendments, not unconstitutional revisions.

In McFadden in 1948, the California Supreme Court struck down an initiative as an unconstitutional revision on the grounds that it added 21,000 words to what was then a 55,000-word Constitution. The 1948 court said the initiative was 'revisory rather than amendatory in nature,' because of the 'far reaching and multifarious substance of the measure ...; (p. 332) which dealt with such varied and diverse subjects as retirement pensions, gambling, taxes, oleomargarine, healing arts, civic centers, senate reapportionment, fish and game, and surface mining. We noted that the proposal would have repealed or substantially altered at least 15 of the 25 articles which then comprised the Constitution."[25]

Other states

There have been lawsuits in two other states contending that bans in those states on same-sex marriage passed via the initiative process were unconstitutional revisions rather that amendments:

Initial opposition

In July, these same groups petitioned the court to be allowed to intervene on behalf of the plaintiffs.[29]

Griffin of AFER asked that these groups not be allowed to intervene in the case. He wrote a letter to the groups in early July 2009 saying, "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. In light of this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening. Therefore, we will vigorously oppose any motion to intervene.”[29]

Attorneys Olson and Boies also asked the court not to allow these groups to intervene, saying that their intervention "poses a substantial risk of interference and delay...Having declined to bring their own federal challenge to Proposition 8, Our Family Coalition and their counsel [the gay rights groups] should not be allowed to usurp plaintiffs' lawsuit now that it is under way and moving forward on an expedited basis."[29]

Disclosure of campaign materials

A key early issue in the case was a request by plaintiffs that the court compel the "Yes on 8" campaign to release its internal campaign strategy documents. The reason for this request, according to one account, is that the plaintiffs believed that if they found evidence in these documents that the "Yes on 8" strategists were attempting "to sow fear and discrimination against gays and lesbians", this information would be relevant in helping a judge decide what the motivations were of those who voted in favor of Proposition 8.[30]

On December 16, one of the 27 active judges on the Ninth Circuit called for a vote to rehear the issue with a full 11-member panel of judges. Attorneys on both sides of the dispute were requested to file briefs on the matter by December 24, 2009[30] On December 30, the court announced that it was re-affirming its original ruling not to order disclosure.[34]

Televised coverage

On Wednesday, January 6, federal judge Vaughn Walker ruled that cameras will be allowed in his courtroom when he begins hearings on the federal lawsuit on January 11.

Donor disclosure lawsuit

"Protect Marriage", sponsors of the amendment, filed an unsuccessful lawsuit in January in the United States District Court for the Eastern District of California in which they sought a preliminary injunction of a California election law that requires donors of $100 or more to disclose their names, addresses, occupations and other personal information. The lawsuit sought a preliminary injunction prior to January 31, which is when the campaign's final finance filing was due. The lawsuit's attorney is James Bopp Jr., a lawyer from Indiana who is frequently involved in political speech cases, who said that what he refers to as harassment of Proposition 8 supporters before and after the campaign is a violation of their constitutional rights of free speech and assembly.[38]

Oral arguments in the case were heard by U.S. District Judge Morrison C. England, Jr., on Thursday, January 29. He rejected the plaintiff's position; although an appeal is pending, the donors were disclosed by the February 2 disclosure deadline.[39]

The mandatory disclosure of contributors to Proposition 8 on the website of the California Secretary of State has led to acts of vandalism, boycotts and death threats, according to the lawsuit.

"This harassment is made possible because of California's unconstitutional campaign finance disclosure rules as applied to ballot measure committees where even donors of as little as $100 must have their names, home addresses and employers listed on public documents," according Ron Prentice, who is the chairman of the Yes on 8 committee.[40]

The suit seeks to:

Eliminate all campaign disclosure requirements for ballot measures after an election.

Bar the state from requiring any additional contribution reports.

Require officials to purge all pre-election reports from their public files.

Tim Chandler of the Alliance Defense Fund, a Christian legal organization helping with the lawsuit, said, "Citizens shouldn't have to choose between being involved in the democratic process and subjecting themselves to acts of vengeance."

Fred Karger of Californians Against Hate disagrees, saying, "They started this fight in 30 states by going to the ballot and winning. Now the gay community is fighting back and seeing who gave the money. People are choosing who they want to give their business to."

Widespead interest

Observers around the country have weighed in on the issue of protecting donor confidentiality raised by the federal lawsuit with, for example, the Albany Democrat Herald in Oregon editorizing that:

"Campaign contributions are listed publicly on the theory that we should know who pays for politicians’ campaigns and gains influence over them when they’re in office. But on ballot measures, nobody can buy a single voter, no matter how much money he donates to that kind of campaign. We’ll have to figure out how to protect citizens’ right to participate in the democratic process. One way is to allow contributors to remain anonymous in ballot measure campaigns.[41]

Fred Karger, the leader of Californians Against Hate, said in the complaint that The Church of Jesus Christ of Latter-day Saints failed to report money it invested to "organize phone banks, send out direct mailers, provide transportation to California, mobilize a speakers bureau, send out satellite simulcasts and develop Web sites as well as numerous commercials and video broadcasts."[43]

A spokesperson for the LDS Church said that the church had "fully complied with the reporting requirements of the California Political Reform Act" and that "any investigation would confirm the church's full compliance with applicable law." The church spokesperson also said Karger's complaint had "many errors and misstatements."[43]

If the FPPC determines that a violation occurred it can levy a fine of up to $5,000 per violation and can also file a civil lawsuit, which could lead to remedies amounting to three times the amount of unreported or misreported contributions.

The New York Times editorialized in favor of the FPPC investigation.[44]

Robocall lawsuit

In late January 2009, Turlock City Councilwoman Mary Jackson filed a lawsuit in Stanislaus County to find out who paid for a robocall in the county in the last week of the Proposition 8 campaign. The voice on the robocall was represented as being Jackson's voice. The caller urged voters to vote against Proposition 8. However, as the lawsuit alleges, the robocall was a fraudulent misrepresentation, since the recorded voice did not belong to Mary Jackson, nor was she aware of or in anyway involved with the calls.

The lawsuit alleges "unfair business practices" and seeks as much as $10,000 in damages and possibly more in punitive damages.

Jackson is a journalism instructor at Merced College. According to Jackson, her campaign did not record or pay for the call urging a "no" vote on Prop 8.[45]

Pre-election lawsuits

Lawsuit filed to strike from ballot

On June 20, Equality California in a 55-page petition asked the California Supreme Court to strike the initiative from the November ballot. In the brief presented to the court, the reasons given for striking it are:

The measure would be a state constitutional revision, not an amendment, and would therefore require more elaborate procedures for passage.

The initiative petitions circulated to voters before the court ruling were misleading because they declared that the measure would make no change in the marriage laws and would have no fiscal impact.[46]

While a constitutional amendment can be enacted by a voter initiative alone, a proposed revision must be approved by two-thirds of each house of the Legislature before being submitted to state voters.

Attorneys who filed the lawsuit said the initiative is a revision because it would "alter the underlying principles on which the California Constitution is based."

Also, the measure would have the effect of "severely compromising the core constitutional principle of equal citizenship (and) depriving a vulnerable minority of fundamental rights";

And, "We filed this lawsuit because the sponsors of the initiative haven’t followed the very constitution they’re trying to change. For good reason, there’s a strict process for making revisions to our constitution and it’s more involved than simply collecting petition signatures"[47]

A pro-initiative attorney, Glen Lavy who works with the Alliance Defense Fund, who was quoted in the press about the lawsuit said, "Equality California and its allies are desperate to evade democracy."[48] Five proponents of Proposition 8 filed a brief with the court asking it to reject the attempt to remove the initiative from the ballot, saying that removal would be an "inexcusable incursion into the right of the people to amend their constitution."[49]

The California Supreme Court had three options with respect to the lawsuit:

Hold a hearing on the lawsuit

Act on the petition without holding a hearing

Send the case to a lower court.

Lawsuit fails

On July 16, the California Supreme Court announced that is was declining to consider the request for a hearing. The decision was unanimous. The court did not announce a reason for its decision.[50][51]

Ballot title lawsuit

On July 29, supporters of Proposition 8 filed a lawsuit, Jansen v. Bowen, against California Attorney GeneralJerry Brown. The lawsuit sought to have the Sacramento County Superior Court order a different ballot title for Proposition 8 than the title chosen by Brown. Proposition 8 supporters asked for an expedited hearing on their lawsuit, since the state ballot booklets were to go to the printers on August 11. Protect Marriage, in its brief, cited research that the attorney general had not used a negative active verb like "eliminates" in the title of a ballot measure in the fifty years in which ballot measures have been used.[52] On Friday, August 8, Sacramento County Superior Court Judge Timothy Frawley ruled against Proposition 8 supporters in a 8-page ruling that said the ballot title is an accurate representation of what Proposition 8 will do.[53][54][55]

Proposition 8 supporters argued in the lawsuit that the new title chosen by Brown is "inherently argumentative and highly likely to create prejudice." The two specific requests in the lawsuit were that the ballot title be changed to:

Use the wording, "Limit on Marriage," because that is the language used on the initiative petitions that were circulated and signed by 1.2 million registered voters.

Or, use the title, "Only marriage between a man and a woman is valid or recognized in California."

When the initiative wording for what eventually became Proposition 8 was filed many months ago, the title that Brown conferred on it at that time was consistent with what supporters of Proposition 8 are asking for. However, Brown changed the ballot title on July 3, 2008 to a short description and summary that Proposition 8 supporters, as well as a number of political pundits in California, believe is adverse to the pro-8 cause. The July 3 ballot title describes the measure as "Eliminates the Right of Same-Sex Couples to Marry." Voters in California, according to ballot pundit Thomas Elias, historically "rarely opt to take away rights" and the revised ballot title frames Proposition 8 as taking away a right.[56][57]

The new ballot summary also says that the measure will cost local governments "tens of millions of dollars" of "potential revenue loss", mainly in lost sales taxes.

Brown criticized, defended for change

Brown was criticized for changing the ballot title. Tony Quinn, a political pundit and consultant generally for Republican causes, said, Brown "is delivering something . . . that is very important to the gay community, and that is a title and summary that is more likely to lead you to vote 'No,'"[58][59][60]

Brown defended the new ballot title, saying:

The petitions bearing the "Limit on Marriage" title were circulated before the California Supreme Court ruled in May that gay and lesbian couples have the same right to marry as opposite-sex couples in California.

Brown says that therefore, "What has happened is the Supreme Court found that the right to marriage includes same-sex couples. This happened after the original title was approved. ... Now same-sex couples have a right that's recognized and supporters of the proposition want to eliminate that right."

Brown said that supporters of Proposition 8 "can't say with a straight face that this isn't about eliminating the right to gay marriage, so what's their problem with this? This is a political lawsuit, not one about serious legal issues."

In its lawsuit, Protect Marriage, supporters of Proposition 8, say that research they conducted "found that never in the 50-year history of statewide ballot measures has the attorney general used an active verb like 'eliminates' in the title of a ballot measure."[61]

Lawsuits over ballot booklets

Opponents of Proposition 8 filed a lawsuit, Jenkins v. Bowen, in late July asking that a pro-8 argument set to appear in the official ballot booklet that will be printed on August 11 and made available both on state websites and at polling places be removed.[62]

The pro-8 arguments that anti-8 groups want removed from the booklet say:

"It [Prop 8] protects our children from being taught in public schools that 'same-sex marriage' is the same as traditional marriage".

"In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage." (Emphases and capitalization from original text.)[63]

Change ordered in wording:

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Proposition 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Proposition 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be".[64]